All Woman

Could you be divorced and not know it?

Donna Hussey-Whyte

Monday, February 18, 2013    

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FOR one rural St Catherine woman who had been separated from her husband for eight years, it was after hearing rumours that her husband had remarried that she caught on to the fact of her divorce. For others it's more of the same story — hearing that they're no longer married when they happen to hear about their estranged spouses' new unions.

Attorney-at-law Garth Taylor said persons can in fact be divorced without knowing it, under certain circumstances.

"If you are the respondent and the person (petitioner) could not get to serve you, then it can be done," he said. "There are circumstances under which the court can order substituted service, meaning service is not personal. That means service was by some other method other than delivering the document to the respondent."

He said, for example, that the court can instruct the petitioner to advertise in the newspaper located in the area of the last address the person lived.

"If you are going to make an order for substituted service you have to first prove that you can't locate the person to serve them. Sometimes people leave jurisdictions. You will go to the court and say 'I have taken all steps to try and locate the person'. That means you checked the places where you know the person used to be, their last address, for example, and nobody knows where the person is. So you then tell the court that you have exhausted all options in terms of your search and you want an order for substituted service. So you are asking the court to allow you to advertise in the newspapers, the major newspapers, instead of searching for the person personally."

And while the petitioner may want to use this as a trick to get an uncontested divorce, the lawyer said it is a more expensive route to take, which may be a deterrent.

"It is cheaper to serve the person personally than to get substituted service because you have to pay your lawyer to do that," Taylor said. "If you were serving the person personally, you'd just get a district constable to go and deliver the papers to them. So I don't see why somebody would want to take the more expensive route."

And for those who were actually personally served yet chose to ignore the service, the divorce can actually go ahead without their signature or acknowledgement. In fact, in Jamaica, you need not attend court in order to obtain your decree of divorce because the process can be done and concluded by documents alone.

"What you are to do, if you wish, is fill in and file in the court your Acknowledgement of Service. By this document you inform the court that you were indeed served, and that you intend to defend the petition or any paragraphs therein, by filing an answer, or that you do not intend to defend it at all," attorney Margarette Macaulay said.

"You may also choose to do nothing... then [the petitioner's lawyer] would then have filed in the court an Affidavit of Service, in which the process server or the person who served the documents would have related on oath, the circumstances of the service on the respondent. Documents would also have been filed for the process to proceed by default on the basis of the respondent's failure to acknowledge and/or answer. There would also have been filed an Affidavit of Search to prove the fact that the court records have been searched and no acknowledgement or answer was found. Then the divorce proceeding would be dealt with by a judge on the documents filed on behalf of the petitioner."

If the judge is satisfied that everything is in order, then the decree nisi will be granted, then the decree absolute.

A search in the civil registry of the Supreme Court should lead estranged spouses to ascertain whether a decree absolute has been granted.

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